CHIEF LAWRENCE OLUJIDE ADEWALE & ANOR. V. DR. IBRAHIM OLAIFA & ORS. (2012)

CHIEF LAWRENCE OLUJIDE ADEWALE & ANOR. V. DR. IBRAHIM OLAIFA & ORS.

(2012)LCN/5214(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of March, 2012

CA/I/EPT/NA/18/2011

RATIO

ELECTORAL PROCESSES: ON THE ROLE OF AN AGENT IN TENDERING EVIDENCE

In my modest opinion, the appropriate witness through whom the discovered evidence should have been tendered in evidence, for it to carry weight or probative value, was any of the field agents of the appellants or the electoral official manning the affected units or any other field agent of any other political party in the said units, The matter is better expressed by Tobi, J.S.C., (as he was) in Buhari v. INEC and Others (2008) 19 NWLR (pt.1120) 246 at 424 – thus: “An agent is the representative of the candidate in the polling station. He sees all the activities. He hears every talk in the station. He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling units or polling booth like the appellant is certainly hearsay. And here, I so regard paragraph 16 of the witness statement or deposition of the appellant. After all, he was not there. He was given the information by the agents. The million naira question is why did these agents not make statement as witnesses? In my view, agents are in the most vantage point to give evidence of wrong doing in a polling unit or polling booth. Can the appellant say in reality that he proved his case without calling any agent?”. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

THE POSITION OF THE LAW REGARDING THE TYPE OF EVIDENCE WHICH MUST BE LED IN SUPPORT AT AN ELECTION

LAW OF EVIDENCE: WHETHER A DOCUMENT THAT HAS BEEN ADMITTED IN EVIDENCE DOES NOT NEED FURTHER PROOF

That is so because, the law is that, the fact that a document has been admitted in evidence does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. See Agballah v. Chime (2009) 1 NWLR (pt. 1122) 373; Adefarasin v. Dayekh (2007) 11 NWLR (pt. 1044) p. 89…. A duty is therefore cast on a party who tenders and relies on documents in proof of his case to call oral evidence to specially relate each document he tenders, to that part of his case for which the document is tendered. That duty does not lie in the court to fish for evidence for the party tendering it, from those documents….”To prove falsification of results of an election two sets of results – one genuine and the other false – must be put in evidence by the party making the accusation. After putting in evidence the two sets of results, a witness or witnesses conversant with the entries made in the result sheets must be called by the party making the accusation of falsification or forgery of results of the election to prove from the electoral documents containing the results of the election how the results of the election were falsified or made up. PER. JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES:

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. CHIEF LAWRENCE OLUJIDE ADEWALE
2. ACTION CONGRESS OF NIGERIA (ACN) – Appellant(s)

AND

1. DR. IBRAHIM OLAIFA
2. ACCORD PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

REASONS FOR JUDGMENT
JOSEPH SHAGBAOR IKYEGH, J.C.A.: (Delivering the Leading Judgment): On 19.12.2011, I dismissed the appeal promising to give reasons for judgment at a later date, which I now give.
The National and State Houses of Assembly Election Tribunal (lower Tribunal) sitting in Ibadan gave judgment on 11.8.2011 confirming the election of the 1st respondent as member of the House of Representatives for the Oluyole Federal Constituency of Oyo State,
It happened that the 1st respondent was sponsored by the 2nd respondent, Accord party, to contest the election conducted on 9.4.2011 by the 3rd respondent, the Independent National Electoral Commission (I.N.E.C).
The 1st appellant who was sponsored by the 2nd appellant, Action Congress of Nigeria, also participated in the election. Ten other political parties also fielded their respective candidates in the election. The 3rd respondent declared the 1st respondent the winner of the election with 10,090 votes, while the 1o appellant came second with 9,988 votes. The 1st respondent’s victory was thus by a narrow margin.
The appellants filed a joint petition at the lower Tribunal complaining that the election was marred by malpractices and non compliance with the provisions of the Electoral Act, 2010, as amended (the Act), which affected the lawfulness of the votes cast at the election and; that the 1st respondent was disqualified from contesting the election for not resigning his appointment with the Lagos State Government one month prior to the date of the election and for presenting a forged tax clearance certificate to the 3rd respondent before the election. The lower Tribunal heard evidence in the petition and resolved in its judgment that the petition was not proved and dismissed it on the merit.
A notice of appeal containing 15 grounds of appeal was filed by the appellants from which the following issues were refined for determination on the appeal –
1. “Whether the tribunal was right and did not cause a serious miscarriage of Justice when it disallowed the Petitioners to give further evidence on Ward 7 Units 17 and 18 on the ground that same was not pleaded when the evidence which would have supported the Petition was discovered pursuant to an order for inspection made by the same tribunal and when there is enough pleading to accommodate the evidence?
2. Whether the Tribunal was right and did not cause a serious miscarriage of Justice when it discountenanced and refused to review and act on the evidence proffered by the Petitioners on Ward 7 Units 17 and 18 on the ground that no one gave evidence on those Units?
3. Whether the Tribunal was right in holding that the election conducted by the 3rd Respondent in Ward 7
Units 7 and 13 were not fraught with substantial non-compliance with the provision of Electoral Act 2010 to warrant nullification of the results?
4. Whether the tribunal was right and did not cause a serious miscarriage of justice in discountenancing wrongly rejected ballot papers which it had earlier admitted in evidence as exhibits 23(1) to 95(7) on the ground that they were not marked “rejected” or “rejected but not objected to” and that PW7 the expert did not show why the ballot papers ought not to have been rejected?
5. Whether the tribunal was right in holding that the 1st Respondent and not the 1st Petitioner had the majority of lawful votes at the House of Representatives election of 9th April 2011 into Oluyole Federal Constituency seat of Oyo State?
6. Whether the tribunal was right in holding that the 1st Respondent was not disqualified from contesting the election?”
The appellants’ brief argued on issue 1 that the lower Tribunal was holding that the appellants as petitioners could not give further of electoral documents missing ballot papers discovered by them pursuant to an order of inspection made by the lower Tribunal when the discovered documents were meant to maintain and sustain the petition of the appellants in respect of the pleaded ward 7 unit 17 and 18 of the Constituency (Aba Alfa and Ajofebo units respectively) on the lawfulness of votes envisaged by paragraph 13 (i) of the First Schedule to the Electoral Act, 2010 as amended (First Schedule) and did not amount to raising new issues forbidden by paragraphs 14(2)(iii) of the First Schedule, considered together with the cases of Aregbesola v. Oyinlola (2009) 14 NWLR (Pt.1162) 429 5 S.C. 133 at 150 to 171, Chia v. Uma (1998) 7 NWLR (Pt.556) 95 and Bullen, Leake and Jacobs: Precedents of Pleadings 1975 (12th Edition) Chapter IV page 377 and Odgers on Pleadings and Practice 20th Edition 3rd Indian Reprint 2010 pages 101 – 105.
The Appellants’ brief argued on issue 2 that the reply of the appellants as petitioners to the reply of the 3rd respondent on 29.7.2011 pleaded facts in respect of ward 7 units 17 and 18 upon which the PW8, the 1st petitioner now 1st appellant, testified covering Exhibit 20 as well which was admitted in evidence without objection, therefore the lower Tribunal abdicated its duty to evaluate the said pieces of evidence on the erroneous ground that it was not pleaded and this Court should do the evaluation accordingly vide Fagbenro v. Arobadi (pt.798) at 193, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 and Akinola v. Oluwo (1962) 1 SCNLR 352.
Appellants’ brief contended on issue 3 that the result of the election in Form EC8A(i) tendered as Exhibit 16(G) was not the true result of the election held in ward 7 unit 7 because the majority of the accredited voters could not vote at the election as pleaded in the petition and supported by the evidence of the PW1, the PW5 the PW8 yet Exhibit 16(G), the result of the unit recorded by the 3rd respondent made up the figures contained therein to give the impression that election was held in the unit when the 3rd respondent wrote and allotted figures in haste on Form EC8A (i), the result of the polling Unit to favour the 1st respondent, consequently the lower Tribunal was wrong to make a case for the respondents on the number of voters on the queue in the unit at the time of accreditation vis-a-vis the number of accredited voters as the respondents did not plead and give evidence on the issue.
It was also argued on issue 3 that PW3 testified corroborated by the evidence of the an ACN member, who was disallowed to vote, as well as the evidence of the PW8 that 84 persons were disenfranchised in ward 7 unit 13 of the Constituency, yet the result of the election in Form EC8A(i) admitted in evidence as Exhibit 16(m) told “a lie of itself” that election was held in the unit by giving particulars of figures of the election which should have prevailed on the lower Tribunal to nullify the result of the unit and, having failed to do so, this Court should void the result of the election in ward 7 units 7 and 13.
Issues 4 and 5 of the brief were argued together to the effect that 653 ballot papers in Exhibits 23(1) – 95(7) tendered through the PW6 were rightly thumb printed for the 2nd petitioner now 2nd appellant as found by the expert evidence of the PW7, a Dr. Depo Faokunla, in pages 625 – 640 of the record were wrongly rejected by the 3rd respondent yet the lower Tribunal refused to add the wrongly rejected 653 ballot papers as votes to the scores of the 2nd appellant on the grounds that it tested the ballot papers against the provisions of section 67 of the Electoral Act, 2010, as amended, (the Electoral Act) and observed no marks of “rejected” or “rejected but not objected to” on them, that the PW6 stated that the ballot papers were “validly rejected” while the PW7 stated that they were wrongly rejected, and that the PW7 did not state why the ballot papers were wrongly rejected, when the PW7 gave the reason that the ballot papers were “rightly thumb printed for the 2nd petitioner” thus supplying the reason to back his expert opinion that the ballot papers were wrongly rejected which piece of important evidence was erroneously ignored by the lower Tribunal making its decision thereby perverse leading to miscarriage of justice which should persuade this Court to set the said perverse finding aside vide Chukwu v. State (2007) 13 NWLR (pt.1052) 430 at 468 and Mogaji v. Odofin (1978) 4 SC. 91.
It was also submitted that the lower Tribunal did not examine the ballot papers to see whether they were rightly thumb printed in line with the case of the parties, not whether they bore the mark “rejected” or “rejected but objected to” not raised in the petition and the replies, therefore, this Court should evaluate the evidence on the improperly evaluated ballot papers in Exhibits 23(1) 95(7) vide the cases of Trade Bank Plc. v. Yisi (Nig. Ltd. (2006) 1 NWLR (pt.960) I v. Sajere (2006) 6 NWLR (pt.661) 360 enjoining courts not to violate the pleadings of the parties by making a case for them.
It was also argued on issues 4 and 5 that the lower Tribunal misapplied section 67 of the Electoral Act which had nothing to do with the case of the parties as presented in the petition based on “rejected ballot papers” tabulated in Pages 27 – 30 of the appellants’ brief, consequently the lower Tribunal descended in the arena of conflict and indulged in “technical justice” by giving “absurd statutory interpretation” to section 67 of the Electoral Act, and penalizing the appellants thereby when the duty of making the ballot papers was on the 3rd respondent contrary to the cases of Adisa v. Ladokun (1931) 1 ANLR (pt.2) at 131, Dapionlong v. Dariye (2007) 8 NWLR (Pt.1036) (pagination not supplied). Garba v. F.C.S.C. (1988) 1 NWLR (Pt. 71) 449, Okwueze v. Ejifor (12001) FWLR (Pt.48) 1277 at 1297, Kawada v. Government Kaduna State (1986) 14 NWLR (Pt.35) (pagination not supplied), Osai v. Wakwah (2006) 4 NWLR (pt.909) 208, Daramola v. A.G. Ondo State (2007) 7 NWLR (pt.655) 446 and Ilori v. Tella (2007) AFWLR (Pt.122) (pagination not supplied).
It was argued finally on issues 4 and 5 that the PW6 was “strictu senso” a witness of the lower Tribunal as he was 3rd respondent’s official on subpoena as appellants’ witness, therefore it was wrong for the lower Tribunal to pit his evidence against the PW7′,s evidence; and that, at any rate, it was for the lower Tribunal to have made its own findings especially having held that it did not require “the expertise of an expert to tell whether a ballot paper is “rightly or wrongly rejected”.
Issues 6 of the brief canvassed that by Exhibit 178, the 2nd respondent was still an employee of the Lagos State Government which disqualified him from contesting the election at which he presented forged tax clearance certificate to the 3’d respondent contrary to section 66(i)(f) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) and the case of Ucha v. Onwe (2011) 4 NWLR (pt. 1237) 386 at 423 and 427, therefore the appeal should be allowed.
The 1st respondent’s brief contended contrariwise that paragraph 05.04 of the appellants’ brief stated that the application was “to effect a substantial alteration of or addition to the statement of facts relied upon to support the ground for or sustain the prayer in the election petition and not amending the petition itself” showing the appellants raised new issues of facts tending to amend or add to the contents of the petition by introducing Forms EC8A(1), EC8B(1), EC8C(1) and EC8D(1) when the time for such an exercise had expired by 7.7.11 contrary to paragraph 14(2)(a)(iii) of the First Schedule and that cases of Hashibu v. Goje (2003) 15 NWLR (pt.843) 352 at 380 – 381, Dingyadi v. Wamako (2008) 17 NWLR (pt.116) 395 at 443; F.M.H. v. S.S.A. Ltd. (2009) 9 NWLR (pt.1145) 193 at 214; that the appellants did not plead any fact relating to missing ballot papers affecting the result of the election in ward 7 units 17 and 18 entitling the lower Tribunal to decline acting on the evidence respecting the units in line with the cases of Udengwu v. Uzuegbu (2003) 13 NWLR (pt. 835) 136 at 156-157- Osahon v, FRN (2003) 15 NWLR (pt. 845) 89 at 119.
The 1st respondent’s brief also contended that the fact that ballot papers are allegedly missing in respect of a polling unit was not sufficient evidence to prove the result of the election was made up, therefore the appellants’ failure to present both the correct result and the alleged are made up by the 3rd respondent did not prove the allegation that the result was made up vide the case of Kalu v. Uzor (2006) 8 NWLR (pt. 981) at 103; that the appellants did not call evidence from their polling agents to contradict the corrected version of the result of the election in ward 7 unit 18 presented by the Presiding Officer to rebut the authenticity of the result, more so the note, Exhibit 20, was not addressed to any person or office, nor was it shown to have been received by the 3rd respondent, therefore no weight should be attached to it and the presumption of regularity should operate in favour of the genuineness of the result of the unit in Exhibit 16 (R);
It was contended further that the appellants’ reply in paragraphs 7, 10 and 11 did not make ward 7 units 17 and 18 an issue as to entitle the lower Tribunal to deal with the issue vide Dingyadi v. Wamako (2008) 17 NWLR (pt. 116) 395 at 443 distinguishing this case (supra) from Aregbesola’s case (supra) where the documents discovered by scanning were pleaded in support of the petition; that the appellants were allowed to tender in evidence 653 ballot papers said to have been wrongly rejected and discovered through the inspection order given by the lower Tribunal unlike in Aregbesola’s case where the discovered documents were not allowed by the lower Tribunal to be tendered in evidence; that the lower Tribunal stopped the appellants from giving evidence on missing ballot papers because the issue was not pleaded unlike Aregbesola’s case where the issue excluded by the lower Tribunal was pleaded; that the appellants tendered in evidence the results for the wards of the constituency but they did not call evidence to rebut the results of units 17 and 18 of ward 7 showing the appellants did not prove miscarriage of justice by the refusal of lower tribunal to admit the additional evidence of the PW8 vide Orji v. PDP (2009) 14 NWLR (pt. 1161) 310 at 400 – 401.
The 1st respondent’s brief contended further that the lower Tribunal evaluated the evidence and came to the conclusion that the evidence of the PW6 and the PW7 was in material conflict on whether the 563 ballot papers in Exhibit 23(1) – 95(7) were wrongly rejected and in the absence of oral evidence explaining the purport of the documents in Exhibits 23(1) – 95(7) especially as the PW7 did not state the reason for his expert opinion, the lower Tribunal was right in attaching no weight to PW7’s evidence vide Chima v. Ezea (2009) 2 NWLR (pt.1125) 253 at 380, Sowemimo v. State (2004) 11 NWLR (pt. 885) 515 and ANPP v. Usman (2008) 12 NWLR (pt.1100) 1 at 68 and 73; that it was the duty of the appellants to demonstrate by evidence that the ballot papers in Exhibits 23(1) – 95(7) complied with the statutory requirements of Exhibit 9, the Manual For Election Officials 2010, not for the lower Tribunal to inquire or investigate into whether the ballot papers were rightly or wrongly rejected vide Ilorin v. Tella (2007) ALL FWLR (pt. 393) 122 at 139; that the appellants’ polling agents did not object to the ballot papers at the time of the polling exercise under section 67 (2) of the Electoral Act making their objection to it on appeal belated, therefore the lower Tribunal arrived at a correct decision on the ballot papers regardless whether it was “based on erroneous premises” vide Ekpo v. The State (2003) 17 NWLR (pt. 849) 392 at 409.
It was submitted in addition that the appellants’ allegation that the results for ward 7 units 7 and 13 were made up was an allegation of forgery or falsification of the results, a criminal offence, requiring proof beyond reasonable doubt by tendering in evidence the genuine result and the false result and demonstrating and proving there-from the forgery or falsification of the result which was not established by the appellants vide Chime v. Onyia (2009) 2 NWLR (pt.1124) 1 at 62 – 63, Ajadi v. Ajibola (2004) 16 NWLR (pt. 898) 91 at 201, Kalu v. Uzor (supra) at 103, Obinwunne v. Tabansi-Okoye (2006) 8 NWLR (pt. 981) 150 at 110 -111, Ojo v. Osho (1999) 5 NWLR (pt.603) 444 at 452 and section 135 of the Evidence Act, 2011 read with Black’s Law Dictionary, 7th Edition page 661.
In respect of the alleged disenfranchisement of voters in ward 7 units 13 and 17, the 1st respondent’s brief submitted that the appellants did not establish that the voters would have voted for them vide Ebebe v. Ezenduka 91998) 7 NWLR (pt.556) 74 at 81, Chime v. Onyia (supra) at 42 establishing it that proof of disenfranchisement of voters is by calling evidence of a voter from each polling unit whose voter’s card must be tendered in evidence together with the voters register used at the election from which it could be ascertained the tickings against the names of the registered voters which was not met by the appellants, nor did the appellants’ mathematical attack on Exhibits 16(g) and 16 (m) in their brief establish that it substantially affected the result of the election, more so the PW1 admitted the election in the unit was transparent, consequently the appellants did not make a case for the voiding of the election as required by section 139(1) of the Electoral Act read with the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 306-311 and Yusuf v. Obasanjo (2005) 18 NWLR (pt. 956) 96; and that the presumption in favour of the genuineness of the result of the election declared by the 3rd respondent was not rebutted by the appellants and should be held to be valid vide Hashidu v. Goje (supra) at 386 – 387 especially as the appellants’ witnesses who were in the polling units in question did not challenge the results of the election as recorded in Form EC8A(i) for ward 7 units 7 and 13 making the evidence of the PW8 who was not present in the units at the material time of the election hearsay vide Buhari v. Obasanjo (supra) at 315 – 316.
The 1st respondent’s brief argued on the issue of alleged disqualification of the 1st respondent to contest the election that the findings of fact of the lower Tribunal (pages 1049 – 1050 of the record) that the 1st respondent was at all material times to the election a summarily dismissed staff of the Lagos State Government were supported by the evidence vide F.A.A.N. v. Greenstone Ltd. (2009) 10 NWLR (pt. 1150) 624 at 649; that the allegation of presentation of forged tax clearance certificate to the 3rd respondent by the 1st respondent is a criminal allegation which the appellants did not prove beyond reasonable doubt vide Buhari v. INEC (2008) 4 NWLR (pt.1978) 546 at 663 – 664 as they did not tender the alleged forged certificate in evidence at the lower Tribunal; and that the grounds in support of the petition are “fatally contradictory” by seeking for the nullification of the election and at the same time praying the lower Tribunal to declare the 1st appellant winner of the election contrary to the decisions in Dingyadi v. Wamako (2008) 17 NWLR (pt.1116) 395 at 457 and Onuigwe v. Emelumba (2008) 9 NWLR (pt. 1092) 371 at 411-412.
The 2nd respondent’s brief started with a preliminary objection which was abandoned or withdrawn by the 2nd respondent’s learned counsel at the hearing of the appeal on 19.12.11, and was consequently struck out on that ground. The 2nd respondent’s brief then adopted the 1st respondent’s brief as arguments on the appeal. Therefore, the summary of the 1st respondent’s arguments on the appeal (supra) is adopted for the 2nd respondent.
The 3rd respondent’s brief adopted the brief statement of facts in the 1st respondent’s brief of argument (supra) before it commenced submissions to the effect that the appellants did not appeal against the Ruling of the lower Tribunal delivered on 11.8.11 (pages 625-640 of the record) that the appellants could not lead evidence on the facts in respect of ward 7 units 17 and 18 as they raised substantial fresh issues of fact thereto, therefore the appellants should not have violated the subsisting order of the lower Tribunal by raising the same issue in their final address, more so the new issues offended paragraph 14(2) (iii) of the First Schedule and were also not specifically pleaded in respect of ward 7 units 17 and 18 and that the evidence of the PW8 respecting them was hearsay showing the absence of proof of the allegation vide Jega v. Aliu (2010) ALL FWLR (Pt. 502) 1066 at 1090 1091, Olafemi v, Ayo (2010) AFWLR (pt. 525) 547 at S90 and Mwakodo v. Ohajuruka (2010) AFWLR (pt. 511) 849 at 875 to the effect that documentary evidence in relation to Forms EC8A without evidence of agents in respect of them is hearsay without probative value.
The 3rd respondent’s brief also submitted that the 653 ballot papers were dumped on the lower Tribunal without the PW7 demonstrating in the open Tribunal how the rejection of the ballot papers was wrongful contrary to the case of Kwali v. Dobi (2010) AFWLR (pt. 505) 1883 at 1921; that by section 67(2) of the Electoral Act only ballot papers marked “rejected” or “rejected but objected to” can be accepted by the lower Tribunal as rejected ballot papers which was not the case with the 653 ballot papers Exhibits 23(1) – 95(7) tendered through the PW6 called on subpoena by the appellants who contradicted the PW7’s evidence that the ballot papers were rightly rejected by the 3rd respondent.
Consequently, it was argued that the appellants made non compliance with the provisions of the Electoral Act a complaint in the petition and were fixed with the heavy duty to prove by cogent and compelling evidence the non-compliance which they failed to discharge, therefore the presumption of genuineness of the election result tendered by the appellants was not rebutted by them and should be taken to be the genuine result vide Obi-Odu v. Duke (2005) AFWLR (pt. 337) 537 at 557 at 558, Nwole v. Iwuagwu (2006) AFWLR (pt. 316) 325 at 344, Udeagha v. Omegara (2010) AFWLR (pt. 542) 1785 at 1814 and Nnaji v. Agbo (2006) AFWLR (pt.305) 735 at 759; that the criminal allegation of forgery and falsification of results for ward 7 units 7 and 13 in Exhibits 16(G) and 16 (M) were not proved beyond/ reasonable doubt and having been tendered by the appellants the presumption of genuineness and correctness thereof attached to them in the absence of rebuttal evidence; that the criminal allegation of forgery of tax clearance certificate by the 1st respondent was not proved beyond reasonable doubt, nor did the appellants prove the nor did the appellants prove the 1st respondent was an employee of the Lagos State Hospital Management Board at the time of the election, consequently the appeal should be dismissed.
The appellants filed reply briefs to the 1st, 2nd and 3rd respondents’ respective briefs. The appellants’ reply brief submitted in respect of the 1st respondent’s brief that the issue was whether the appellants could adduce evidence effecting a substantial alteration to the statement of facts relied upon to support the ground for or sustain the prayer in the petition, not whether the appellants had introduced substantial alteration to the facts of the petition and the ruling appealed against had to do with adducing further evidence, not whether the appellants raised new facts in their reply to the respondents’ reply, consequently the cases of Dingyadi v. Wamako (supra), F.M.H v. C.S.A Ltd (supra) and Udengwu v, Uzuengbu (supra) are irrelevant to the purport of paragraph 14(2)(a)(ii) of the First Schedule; that the evidence discovered upon the inspection carried out under section 151 of the Electoral Act was intended by the Legislature to be used to support or maintain the petition, so to discount such evidence as was done by the lower Tribunal was wrong vide Aregbesola (supra) at 478; that it was the duty of the 3rd respondent to write “rejected but not objected to” on the rejected ballot papers not the appellants who should not be penalized for irregularities not attributable to them vide Aguma v. Iroakazi (1998) 10 NWLR (pt. 568) 173 at 175 and Oyegun v. Igbinedion (t992) 2 NWLR (pt. 225) (pagination not supplied); that the appellants produced sufficient rebuttable evidence to “shoot down” Exhibits 16 (G), 16(M) 16(q) and 16(r) Forms EC8A(i) for ward 7 units 7, 13, 17 and 18 vide Buhari v. INEC (2009) ALL FWLR (pt. 459) 619-620. The appellants’ reply brief to the 1st respondent’s brief also canvassed that the issue whether the appellants pleaded fresh facts in their reply was not made in the lower Tribunal and same should not be raised on appeal without the leave of this Court vide Gbadamosi v. Dairo (2007) 3 NWLR (pt. 1021) 306, Olaniyi v, Elero (2007) 8 NWLR (pt. 1034) 625 and Ikpana v. RTPCN (2005) 3 NWLR (pt, 966) 106 at 136; that the PW7 gave his evidence shifting the onus of proof to the respondents to show the ballot papers were validly rejected by the 3rd respondent vide section 133(i) and (ii) of the Evidence Act and the case of Iba Ltd, V. Imago (Nig) Ltd, (2001) FWLR (pt. 44) 421; that there is no pleading linking Exhibits 96(i) – 177 to the 1st respondent’s case as to use it to justify the “justness” of the wrongful rejection of Exhibits 23(1) – 95(7), more so that was not the case of the 1st respondent, nor did the lower Tribunal base its judgment on it and being unpleaded matters same should be expunged vide Gagarau v, Pashiri (2006) 1 NWLR (pt. 962) 521 at 538 and Salaudeen v. Maman (2000) FWLR (pt. 17) (pagination not supplied).
The appellants’ reply brief to the 2nd respondent’s brief dealt with the preliminary objection abandoned by the 2nd respondent at the hearing of the appeal therefore nothing further need be said about it.
The reply brief of the appellants to the 3rd respondent’s brief argued that the ruling of 11.8.11 did not estop the appellants from filing a reply to the 3rd respondent’s reply to the petition, as the appellants were entitled by the Rules to file the said reply; that the evidence of the PW8 was in hearsay having regard to Exhibit 16(G) and 16(R) which speak for themselves and also of the fact that the PW8 was in the office of the 3rd respondent when the discoveries on ward 7 units 17 and 18 were made; also Exhibit 20, the “notorious note” of Abosede, the presiding officer at ward 7 unit 18, speaks for itself; that the case of Kwali v. Dobi (supra) at 1883 would not apply to Exhibits 23(1) 95(7) as the PW7 said he inspected the documents and discovered they were rightly thumb- printed for the appellants vide Iba Ltd. v. Imago (Nig) Ltd. (2001) FWLR (pt. 4) 421 on the same submission, therefore the appeal should be allowed.
The appellants stated that the facts relating to ward 7 units 17 and 18 of the constituency were pleaded in paragraphs 8, 9(ii) (iii), 10(10), 10(12)(a), (15) and 20 (ii) and (iv) of the petition, Unlike units 7 and 13 of ward 7, units 17 and 18 of the same ward are not pleaded in the petition. The appellants’ reply to the 3rd respondent’s reply to the petition filed on 29.7.11 however referred to units 17 and 18 of ward 7 in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 thereof thus:
“2. Further to paragraph 1 above the 3rd Respondent also unlawfully rejected Petitioners Valid Votes in Ward 7 Units 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16 and 17; Ward 8 Units 2, 4 and 10; Ward 9 Units 2, 3, 7 and 10; and Ward 10 Units 1, 2, 3, 5, 6, 7 and 8.
3. Still further to paragraphs 1 and 2 above the Petitioner aver that the Petitioners valid votes wrongly rejected by the 3rd Respondent totaled 703 (seven hundred and three).
4. Further to the denial of paragraphs 7 and 10 of the 3rd Respondents reply the petitioners aver that one Abosede Jumoke Adeboye Presiding Officer at Ward 7 Unit 18 Ajofebo did not record the results of that unit properly.
5. The said Presiding Officer wrote a note dated the 9th day of April and attached it to Form EC8A(i) of Unit 18 Ajofebo and admitted making errors in her recording. The said noted dated 9th of April 2011 is hereby pleaded.
6. Further to paragraph 5 above the recording of Abosede Jumoke Adeboye did not tally with the Voters
card available in that Unit as no validly cast votes were kept yet 27 valid votes of the petitioners were wrongly marked rejected.
7. Further to the petitioners denial of paragraphs 7 and 10 of the 3rd respondents reply the petitioners further aver that the ballot papers kept by the 3rd respondents at ward 7 unit 17 Aba Alfa were at variance with 3rd respondents Form EC8A(i) and EC88(i). Whereas 453 was recorded as total number of valid votes and 35 as rejected votes, 139 was recorded for the petitioner only 49 ballot papers have been kept by the 3rd respondent leaving a difference of 90 votes, and 219 have been recorded by the 3rd respondent for the 2nd respondent 192 ballots papers have been kept by the 3rd respondent for the 2nd respondent leaving a difference of 27 votes.
8. The petitioners deny and state that the 1st, 2nd and 3rd respondents connived together to declare the 1st respondent winner of an election lawfully won by the 1st petitioner.
9. The petitioners shall at the trial contend that the election in ward 7 units 17 and 18 should be cancelled for substantial non compliance with the Electoral Act.”
Based on paragraphs 2-9 of the appellants’ reply to the 3rd respondent’s reply to the petition (supra), I would agree with the appellants’ learned senior counsel, Mr. Akeredolu, that the lower Tribunal erred when it held that facts relating to units 17 and 18 of ward 7 were not pleaded.
The appellants had by motion on notice prayed the lower Tribunal to allow them lead additional evidence from the 1st appellant in respect of units 17 and 18 of ward 7. But the lower Tribunal in a ruling delivered on 11.8.11, refused the application in these words:
“As regards facts relating to ward 7 units 18 and 17, we agree with learned counsel for the respondent upon a careful scrutiny of the petition that no mention was made, in specific terms, of those units in the petition let alone complaints of missing ballot papers. Clearly, those facts, if allowed would raised substantial and fundamental and fresh issues of far-reaching consequences which can only be accommodated by a formal amendment. The petitioners are not entitled to raise such new issues now without violating the provisions of paragraph 14(2) (iii) of the First Schedule to the Electoral Act 2010 (as amended). We consider paragraph 14(2)(iii) as one of the exceptions to paragraph 45 of the First Schedule. Accordingly, we exercise our discretion by refusing applicants’ prayers as they relate to ward 7 units 18 and 17.”
The appellants did not appeal against the interlocutory ruling refusing them leave to adduce additional evidence through the 1st appellant as 1st petitioner. They decided to raise the issue in their notice and grounds of appeal filed on 11.11.11, when an appeal on such ruling was supposed to be filed and heard by this Court within 60 days of the date of the ruling. And from 11.8.11 to 11.11.11 stretched beyond 60 days, therefore the grounds of appeal relating to the units L7 and 18 of ward 7 ought not to be entertained as to do so would breach section 285(7) of the Constitution of the Federal Republic of Nigeria 1999, as amended – See the very recent Supreme Court case of Congress For Progressive Change (CPC) v. Independent National Electoral Commission {INEC) and Others; Appeal No. SC. 426/2011 delivered on 28.12.2011, where it was held in the lead judgment of Adekeye, J.S.C., inter alia that:
“Section 285(7) of the 1999 Constitution (as amended) reads – ” an appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal”
The simple, straight forward, unambiguous words used in the foregoing provisions show that section 285
(7) of the 1999 Constitution (as amended) and Section one of the Practice Directions are Limitation Laws. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration period of the prescribed period is said to be statute barred.”Be that as it may, it will be appropriate, out of extra caution, to look at the issue on the merit.
The appellants sought to adduce additional evidence in the petition, the said additional evidence was in respect of ward 7 units 17 and 18 of the constituency. It had to do with the facts pleaded in the appellants’ reply to the 3rd respondent’s reply to the petition (supra). The said evidence became available to the appellants upon inspection of electoral documents contained in their frontloaded case:
“11. That at the inspection it was discovered that all lawfully cast ballot papers were missing at AJOFEBO ward 7 unit 18.
12. That attached to Form EC8A(i) is a note by one Adeboye Abosede Jumoke Presiding Officer that the informations entered in Form EC8A(i) and EC8A(i) and EC8A that the results were wrongly entered and she had to fill another Form to correct the error. Yet the new Form bears the signature of the Accord Party Agent. Copy of the letter and Form DC8A(i) is herewith attached and marked Exhibits ‘A’ and ‘B’
13. That the 192 votes recorded for Accord Party was entered in Form EC8B(i). A copy is attached as Exhibit ‘C’.
14. That on application certified True Copies of Forms EC8B(i) we given to me.
15. That the letter of Adebayo Abosede 3rd Respondents Presiding Officer for AJOFEBO ward 7 unit 18 was not attached to Form EC8A(i) for ward 7 unit 18 and Form EC8B(i) given to me by the 3rd Respondent.
16. That at ward 7 unit 17, 90 ballot papers for the 2nd petitioner were missing. Whereas 139 was recorded for 2nd petitioner 49 ballot papers were found.
17. For the 2nd Respondent whereas 219 was recorded on Form EC8A(i) only 192 ballot papers were found leaving a difference of 27 ballot papers.
18. In ward 7 unit 17, 453 was recorded as total no of valid votes and 35 as rejected votes.
19. That were it not for the order of court the respondents meant to hide the fact from me and such discovery would not have been made.
20. That I depose to this statement on oath in good faith. ”
I am in full agreement with the appellants’ learned senior counsel, Mr Akeredolu, that the additional evidence from the 1st appellant as 1st petitioner was not an amendment of the grounds or prayers in the petition within the contemplation of paragraph 14(2)(iii) of the First Schedule. The said additional evidence sought to be adduced by the appellants from discovery of same in the course of inspection of electoral documents by the appellants pursuant to an order of the lower Tribunal sought and had by the appellants, so it was preposterous of the lower Tribunal to block the appellants from giving the discovered evidence before it – see Aregbesola v. Oyinlola (supra) at pages 477-478- where Omage, J.C.A., (as he was) held that such evidence was admissible See also the case of Moronu v. Benson (1965) L.L,R. 78.The lower Tribunal, with respect, misconceived the rudder of the appellants’ case by importing into it the issue of amendment of pleadings when it was clear as skillfully submitted by Mr. Akeredolu, learned senior counsel for the appellants, that the gist of the application was to put in additional evidence, And by the recognized rule of pleadings, evidence or subsidiary issues are not to be pleaded – See Okagbue v. Romaine (supra) cited by the appellants, also to be found in (1982) 13 N.S.C.C. 130 at 137 per the lucid judgment of the great jurist Idigbe, JSC., (now of blessed memory) thus:
The rule of pleading is and has always been that every pleading must contain only a statement of material (repeat, material) facts on which a party to an action relies and not (repeat not) the evidence by which they are to be proved. It must, however, always be borne in mind that all facts which tend to prove the fact in issue will be relevant at the trial, but they are not material facts’ for pleading purposes – see Bullen and Leake and Jacobs: Precedents of Pleadings (1975) 12th Edition Chapter IV at P. 37.”
The lower Tribunal was, accordingly, quite wrong for the reasons given by it (supra) to shut out the discovered evidence from the inspection of electoral materials by the appellants.
The said additional evidence of the 1st appellant as 1st petitioner (supra) stated inter-alia that 25 votes were wrongly rejected for unit 17 of ward 7 with particulars in support. Paragraphs 9-15 thereof further stated:
“9. That if the 703 votes are added to the result declared for the 2nd petitioner, 2nd petitioner would have majority of lawful votes cast at the election.
10. That at the inspection it was discovered that all lawfully cast ballot papers were missing at AJOFEBO ward 7 unit 18.
11. That attached to the Form EC8A (i) is a note by one Adebayo Abosede Jumoke presiding officer that the informations entered in “Form EC8A i) and EC8A” that results were wrongly entered and she had to fill another Form to correct the error. A copy of the letter is attached and marked Exhibit FF1.
12. That despite the letter Exhibit FF1 192 votes were recorded for the 2nd respondent in Forms EC8A(i) where 63 votes were recorded for the petitioners.
13. That at ward 7 unit 17,139 votes were recorded on Form EC8A(i) only 49 ballot papers were found leaving a difference of 90 ballot paper.
14. For the 2nd respondent whereas 219 votes were recorded on Form EC8A(i) only 192 ballot papers were found leaving a difference of 27 ballot papers.
15. In ward 7 unit 17,453 was recorded as total no of valid votes and 35 as rejected votes.”
By section 15 of the Court of Appeal Act, 2004, as amended, read with the cases of Fagbenro v. Arobadi (supra) and Romaine v. Romaine (supra), this Court can look at the proposed additional statement of the 1st petitioner in the lower Tribunal (supra) to ascertain the materiality or weight of the excluded additional statement.
In respect of the letter stated in paragraphs 11 and 12 of the additional statement same was admitted in evidence as Exhibit 20 showing the said piece of evidence was not excluded from the petition. The facts in the additional statement on oath of the 1st petitioner, in respect of ward 7 unit 17 were not from his personal knowledge. They were derived from the electoral forms used at the election. The 1st appellant, as the 1st petitioner also answered under cross-examination by Mr Aturu for the 1st respondent in page
771 of the record inter-alia that:
‘I voted during the election at Abaiji village ward 1. I was accredited around 11 am, I was at the polling
unit throughout. I left the polling station at the close of the election. I then went somewhere in Oluyole L. Govt. I was not in every polling unit. What I know about other units were what I was told by my agents.” (My emphasis).
By paragraphs 4 and 5 of the additional evidence of the 1st appellant as 1st petitioner (supra), unit 18 of ward 7 was Ajofebo, not Abaiji village ward 1, and by paragraph 7 thereof unit 17 of ward 7 was Aba Alfa unit, not Abaiji village ward 1. The 1st appellant was thus not physically present in the said units of ward 7 at the time of the election.
In my modest opinion, the appropriate witness through whom the discovered evidence should have been tendered in evidence, for it to carry weight or probative value, was any of the field agents of the appellants or the electoral official manning the affected units or any other field agent of any other political party in the said units, The matter is better expressed by Tobi, J.S.C., (as he was) in Buhari v. INEC and Others (2008) 19 NWLR (pt.1120) 246 at 424 – thus:
“An agent is the representative of the candidate in the polling station. He sees all the activities. He hears every talk in the station. He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling units or polling booth like the appellant is certainly hearsay. And here, I so regard paragraph 16 of the witness statement or deposition of the appellant. After all, he was not there. He was given the information by the agents. The million naira question is why did these agents not make statement as witnesses? In my view, agents are in the most vantage point to give evidence of wrong doing in a polling unit or polling booth. Can the appellant say in reality that he proved his case without calling any agent?”

Therefore, even if the said additional evidence had been received, it would have had no weight as it did not come from a person conversant with the entries in the electoral forms in question, nor from a person that personally witnessed the election in the affected units of the ward see Buhari and Another v. Obasanjo and Others (2006) 2 EPR 295 at 559 – 560,,thus:
”On the question whether the evidence led in support is sufficient to warrant the decision reached on the point by the court below, it is necessary to examine the said evidence led. The position of the law regarding the type of evidence which must be led in support at an election are being challenged should come direct from the officers who were on the field where the votes were counted and/or collated. See Omoboriowo v. Ajasin (1984) 1 SCNLR 108; and Hashidu v. Goje (2003) 15 NWLR (pt. 843) 352 at 386.
In the Hashidu v. Goje case, supra, I stated the position of the law on the point on page 393 of the report as follow: None of these party agents was called to testify. Similarly none of the INEC polling agents was called to testify and confirm the figures since they should be the makers of the Forms on which the figures given were written. It follows therefore that the evidence given by the said PW1 on the figures and relied on by the lower court was totally inadmissible because it is hearsay evidence. The court below was therefore wrong in relying on the figures.”
See also Buhari v. INEC (2009) ALL FWLR (pt. 459) 1 at 568-569 and Buhari v, INEC and Others (2008) 19 NWLR (pt. 1120) 246 at 391 – 392 thus:’
,”Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the contents of the document.”
Then in Omega Bank Ltd) 8 NWLR (pt.928) 547 at 582, it was similarly held that:
“The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it the non maker of it is not in such position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court does not attach any probative value is as good as the mere paper on which it is made,”
See again Alao v. Akano (2005) 22 NSCQR (pt, 11) 867 at 884 per Eiiwunmi, J.S.C. (as he was, now of blessed memory), Rimdam v. Lar (1999) 3 NWLR (pt. 620) 538, to the effect that the entries in the electoral forms alone do not constitute proof of disputed scores, unless there is evidence from a person privy to or conversant with the entries to shed light on them before such allegation may be proved.
The alleged missing ballot papers in ward 7 unit 17 of the Constituency could not, therefore, have been satisfactorily or sufficiently proved and/or explained by reference to the entries in the electoral forms for the unit through the analysis of the 1st appellant, as the 1st petitioner, in his additional statement in order to supply the nexus between the missing ballot papers and the entries in the electoral forms when he was neither the maker of the electoral documents nor was seized of its content.
Also, Exhibit 16 Q, the result sheet in Form EC8A(i) for Aba Alfa unit 17 of ward 7 dated 9.4.2011, signed by the presiding officer of the unit, one Simeon Patriot, showed one Yekeen Mutiu Akere counter-signed it as party agent of the ACN, the 2nd appellant. He was not called as a witness to disown the document, The appellants are therefore bound by the result stated in Exhibit 16 Q showing the 1st-2nd respondents scored 219 votes, while the appellants scored 139 votes in the said unit See Uzamere v. Urhoghide (2911) ALL FWLR (pt. 588) 839 at 861. So the additional evidence the appellants sought to furnish to impugn the election in the unit would not have been useful in light of evidence of the signing of the result sheet by their party agent.
In my modest opinion, the exclusion of the additional evidence of the 1st appellant as 1st petitioner, could not have caused miscarriage of justice to the appellants as the said additional evidence had no probative value and, even if it was accepted by the lower Tribunal, it would not have assisted the appellants’ case in respect of units 17 and 18 of ward 7 of the constituency.
The hand written note, Exhibit 20, attributed to the presiding Officer of ward 7 unit 18, one Adeoye Abosede lumoke, explained the result entered in form EC8A(i) of the polling unit, Exhibit 16R, as follows –
“I, Adeboye Abosede Jumoke the presiding officer of Ajefebo polling station in ward 07 hereby write to inform the commission about a mistake made in the course of writing he election result in form EC8A(i) and EC8A forms.
The result meant for senatorial was wrongly entered into the house of Representative and the vice visa. The corrections were subsequently made in the following passages of the forms.
Please kindly pardon my mistakes as it was not deliberate, Thanks for your usual cooperation.”
There was no contrary evidence impugning the status and integrity of Exhibit 16R. Accordingly, Exhibit 20, a piece of documentary evidence, can be evaluated by this Court under section 15 of the Court of Appeal Act and, having seen its contents it is clear that it corrected the error or mistake before Exhibit 16 R, the result of the polling unit, was issued and puts paid to the contention of the appellants that the result of the unit was wrongly computed by the presiding officer of the unit. The argument in respect of Exhibit 20 is therefore of no moment in the unassailable face of Exhibit 16R and the said argument is hereby discountenanced.
The PW1, one Jamiu Olajide Adeleke, admitted under cross-examination by Mr Ajayi for the 3rd respondent in the lower Tribunal that the election in unit 7 Kolajo Community Primary School of ward 7 where he was the appellants’ party agent was transparent. To quote the PW1’s word in page714 of the record:
“The election at the polling unit where I acted as an agent was transparent.”
The PW1’s written statement on oath had deposed in paragraph 8 thereof that:
“All voters present were accredited and accreditation closed just before 2 p.m.”
The PW5, one Afeez Alabi Akanbi, testified that he was a registered voter in unit 7 ward 7 of the constituency. The witness stated in paragraph 4 of his written statement on oath that:
“I voted on the 9th day of April 2011 and waited for the votes to be counted.”
The PW8, the 1st appellant as 1st petitioner, testified in respect of unit 7 ward 7 of the constituency. The 1st appellant answered under cross-examination in page 771 of the record that he voted at Abaiji ward 1 and was at his polling unit throughout the election exercise and knew about what happened in the other units from his agents, so his evidence of what happened in unit 7 Kolajo Community Primary School ward 7 was inadmissible hearsay evidence as he did not personally witness what transpired in the unit but relied on what his agents told him – see Buhari v. INEC (2009) ALL FWLR (pt. 450) 1 at 568 and Buhari v. Obasanjo (2005) ALL FWLR (pt. 273) 1 at 111.
Both the PW1 and PW5 stated in their statements on oath that some accredited voters were not allowed to vote in unit 7 ward 7 to the detriment of the appellants. But none of the voters testified to prove that they were registered voters in the unit and were accredited to vote but were not allowed to exercise their franchise by voting for a candidate of their choice.
Paragraph 3.2 on accreditation procedure contained in the Manual For Election Officials 2011, Exhibit 9, provides in page 21 thereof –
“3.2 ACCREDITATION PROCEDURE
There shall be simultaneous accreditation at all centres. As the voter presents himself/herself, the Poll Clerk (PC) shall:
Step 1: Request for the voter’s card,
NOTE
Only a valid voter’s card shall be acceptable for accreditation and voting.
Step 2: Examine the voter and that the Polling Station details are correct for that Polling Station.
NOTE
If the polling station Code Number on the voter’s card is not the same as the Code Number of your polling station, politely inform the voter that he/she:
(i) Is at the wrong polling station, and that
(ii) In order to vote, he/she must go to the same place that he/she registered.
Step 3: Check the register of voters to confirm that the voter’s name, photo and Voter Identification Number (VIN) as contained on the voter’s card are in the Register of Voters.
Step 4: Tick to the left of the name of the voter, if the person’s name is on the register of voters.”
Therefore, prove disenfranchisement of voters, the voters affected by the disenfranchisement must testify evidencing their registration in the unit provable by their voter’s cards and the presence of their names in the voter’s register of the unit which must be put in evidence coupled with the oral evidence of the voters that they actually presented themselves to vote in the unit but were denied the right to vote see Audu v. INEC and Others (2010) 13 NWLR (pt. 1212) 456 at 522 – 523, Awuse v. Odili and Others (2005) ALL FWLR (pt, 261) 248, Yaro v. Wada (2009) ALL FWLR (pt. 472) 1084 Chime v, Ezea (2009) 2 NWLR (pt. 1125) 263 at 357 and Rotimi v. Faforiji (1999) 6 NWLR (pt. 606) 305.
The complaint of disenfranchisement of voters sought to be proved by the figures recorded in Form EC8A(i) in Exhibit 16 G for unit 7 of ward 7 cannot, in my modest opinion, take the place of the position of the law as restated in Audu v. INEC (supra) and the series of cases cited on the issue (supra), And as held by the Full Court (Agbo, Nwosu-Iheme, Ikyegh, Tsammani and Danjuma, JJ.CA) in the yet unreported case of P.D.P. v. INEC and Others in Appeal No. CA/I/EPT/OG/GOV/21/2011 delivered on 5.1.2011-
‘It is interesting to note that the Appellant tendered a cache of documents, to wit: the result sheets from the various polling units in an effort to prove that voters were disenfranchised. Unfortunately, evidence of disenfranchisement cannot be deduced from the result sheets declared. Even where it can be done (which is not conceded) the party tendering those documents ought to call witness who will give oral evidence to explain or demonstrate how the disenfranchisement occurred. That is so because the law is that, the fact that a document has been admitted in evidence does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. See Agballah v. Chime (2009) 1 NWLR (pt. 1122) 373; Adefarasin v. Dayekh (2007) 11 NWLR (pt. 1044) p. 89….
A duty is therefore cast on a party who tenders and relies on documents in proof of his case to call oral evidence to specially relate each document he tenders, to that part of his case for which the document is tendered. That duty does not lie in the court to fish for evidence for the party tendering it, from those documents….”To prove falsification of results of an election two sets of results – one genuine and the other false – must be put in evidence by the party making the accusation. After putting in evidence the two sets of results, a witness or witnesses conversant with the entries made in the result sheets must be called by the party making the accusation of falsification or forgery of results of the election to prove from the electoral documents containing the results of the election how the results of the election were falsified or made up. The appellants’ witnesses PW1, PW3, PW4 PW5 and PW8 – who were called to testify on the allegation that the results in units 7 and 13 of ward 7 were made up had no direct knowledge of the entries in the electoral result sheets in to equip them with the requisite information to analyze and relate the result sheets to each other to come to the conclusion that they were made up. Consequently, the allegation that the results for units 7 and 13 of ward 7 were made up was not satisfactorily proved see Nwobodo v. Onoh (1984) 1 SCNLR 1, Sabiya v. Tukur (1983) 11 SC 109, Wali v. Bafarawa (2004) 16 NWLR (pt, 1116) 225 at 323, Buhari v. INEC (2009) ALL FWLR (pt. 459) 1 at 569,
The lower Tribunal was, accordingly, right to hold that –
“We agree with learned counsel for the 3rd respondent the petitioners failed to lead evidence to show that the result of ward 7 unit 7 was made up by officials of INEC. No effort was made to call evidence to show how the result was made up. The bare assertion of PW1 that the result was made up, in our view, is not sufficient to prove such a grave allegation …”
The lower Tribunal’s holding that even if the result of unit 7 ward 7 of the constituency in Exhibit 16(G) was subtracted from the scores of the parties the 1st – 2nd respondents would still lead the election also cemented the second leg of section 139(1) of the Electoral Act that the said complaint “did not affect substantially the result of the election”, in my view.
Further evidence in relation to the complaint that the result in unit 13 of ward 7 was made up came from PW3 and PW4 and the analysis of the entries in the result sheet of the unit in Exhibit 16M. The PW3, one Emmanuel Ayodele, stated in his written deposition that he was the appellants’ party agent for unit 13 Shagari Area of ward 7 at the election and that 84 out of 514 accredited voters were not allowed to vote. The PW3 admitted under cross-examination in pages722 and 723 of the record that –
“It is true my party signed the Result Sheets……..I voted.”
Also, Exhbiit 16M, the result sheet for ward 7 unit 13 dated 9.4.2011, signed by the presiding officer, one Adebayo Oluwayesi S was counter-signed by the appellants’ party agent, one Raifu Lukman, with the score of 119 votes for the appellants and 204 votes for the respondents, so the appellants are bound by the act of their agent and cannot be heard to complain about the regularity of the conduct of the election in the unit by the 3rd respondent. See Uzamere v. Urhoghide (Supra).
The PW4, One Adebayo Atoyebi, stated in his written deposition that he was a registered voter in unit 13 Shagari Area of ward 7 and presented himself at the polling unit before 8a.m on 9.4.11 to vote but was not allowed to vote adding under cross-examination (pages 724 – 726 of the record) that majority of voters voted at the election. The PW4’s voter’s card was not tendered in evidence. Whether he was a registered voter in the unit or not was left at large. His evidence was therefore of no moment.
The net result is that no registered voter in unit 13 Shagari Area of ward 7 gave evidence that he presented himself with voter’s card as registered voter in the unit to vote at the election but was not allowed to vote; nor was the voters register of the unit tendered in evidence to show the registered voters and their accreditation on the day of the election.
To avoid repetition, the entire holding with the supplied legal authorities in respect of unit 7 of ward 7 (supra) is hereby adopted for unit 13 ward 7 of the constituency. I would round up in relation to units 7 and 13 of ward 7 that the lower Tribunal reached the right conclusion that the appellants did not prove that the results for the said polling units were made up by the 3rd respondent in favour of the 1st – 2nd respondents. The presumption that the results of the election declared by the 3rd respondent is genuine and authentic was therefore not rebutted by the appellants and I so hold See Jalingo v. Nyame (1992) 3 NWLR (pt. 231) 538, Abubakar v. Yar’Adua (2008) 19 NWLR (pt. 1120) 1, and Hashidu v. Goje (supra) cited by Mr. Aturu for the 1st respondent, and Obi-Odu v. Duke (supra), Nwole v. Iwuagwu (supra) and Nnaji v. Agbo (supra) cited Mr. Faokunla for the 3rd respondent.
The fact that Exhibits 23(1) 95(7) were rejected ballot papers was common ground between the PW6 and the PW7, consequently it was unnecessary for the lower Tribunal to refer to page 31 of Exhibit 9, the Manual for Election Officials 2011, to resolve that the ballot papers must bear the mark “rejected” or “rejected but objected to” before proof of their rejection at the polls would be taken to have been established. The lower Tribunal also erred when it stated that the PW7 did not reveal the basis of his opinion that they were not rejected ballot papers, when it is clear from his evidence that Exhibits 23(1) – 95(7) were thumb-printed for the appellants. The reasoning of the lower Tribunal (supra) was, as rightly submitted by the appellants’ learned senior counsel, Mr. Akeredolu, untenable, and I so hold.
Learned senior counsel for the appellants’ tabulated analysis of the ballot papers in Exhibits 23(1) – 95(7) in pages 27-30 of the well prepared brief to establish that the ballot papers were rejected at the polls by the 3rd respondent, though not evidence to act upon, was already taken care of by the unanimous evidence of the PW6 and the PW7 that they were rejected ballot papers.
The PW6 and PW7 gave evidence as experts. The appellants contended that the PW6 was a witness subpoenaed by the lower Tribunal therefore he was not their witness. Page 38 of the record contained the list of witnesses the appellants intended to call at the lower Tribunal and number thereof has the INEC Official (to be subpoenaed), The subpoena was accordingly issued at the instance of the appellants in pages 230-249 of the record as it is clear from the opening part of the subpoena in pages 230-231 of the record stating inter-alia that the subpoenaed witness was
“…….to appear at the instance of the petitioners” (not the lower Tribunal).
The subpoenaed witness, one Aisuebeogun Stephen, was then led in evidence as appellants’ sixth witness (PW6) by the appellants’ learned senior counsel, Mr. Akeredolu, in pages 740-743, 747 of the record and was, reexamined by appellants’ learned senior counsel in pages 768 of the record.
Section 188(1) of the Evidence Act states –
“The examination of a witness by the party who calls him shall be called his examination – in chief;” While section 188(3) thereof states –
“where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.’,
It follows from the state of affairs given above that the pw6 was the appellants’ witness in the lower Tribunal, not the lower Tribunal witness. The contention of the appellants that pw6 was the lower Tribunal witness is therefore farfetched and is hereby rejected,
On the complaint that the ballot papers thumb printed for the appellants in Exhibits 23(1) – 95(7) were wrongly rejected, the PW6 through whom they were tendered in evidence stated under cross-examination by Mr. Dauda for the 2nd respondent in page 767 of the record that –
“The exhibits tendered were votes validly rejected in Oluyole Federal Constituency. The rejected ballot papers are not to be counted to any political parties. The total rejected votes were 4025 votes.”
The PW6 was not re-examined on the pieces of evidence copied above.
The PW7, a chief Dr. Jacob Depo Faokunla, whose evidence under cross-examination is recorded in pages 768-770 of the record had stated in paragraphs 13-15 of his additional deposition (pages 647-649 of the record) that 703 ballot papers rightly thumb-printed for the 2nd appellant were wrongly rejected as invalid by the 3rd respondent and if the 703 wrongly rejected ballot papers are added to the scores of the 2nd appellant, the 2nd appellant would emerge winner of the election.
The supreme issue is whether the expert evidence given by the pw6 and pw7 that the ballot papers were wrongly rejected harmonized. While PW6 testified that the ballot papers in question Exhibits 23(]) to 95(7) were rightly rejected, the PW7 testified that the said ballot papers were wrongly rejected. Both pieces of evidence are, in my view, polar or diametrically opposed to each other and amount to material contradiction – see Gabriel v. The State (1989) 5 NWLR (pt. 122) 457 at 469 thus:
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated… It is useful to bear in mind the fact that the word “contradict” comes from two Latin words – contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent… ”
The legal consequence of two witnesses called by the same party giving materially contradictory evidence as in this case was stated by the Supreme Court in the case of Onubogu and Another v. The State (1974) 4
ECSLR 403 at 411 (following the English Civil case of Sumner and Leivesley v. Brown (1909) 25 T.L,R. 745) thus:
“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other…We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the proffered explanation.”
The lower Tribunal was, in my modest opinion, right to hold inter-alia that:
“The first challenge to the evidence of PW is the contradiction between his evidence and PW6’s. While
PW7 stated that the Exhibits 23(1) – 95(7) were wrongly rejected, PW6 stated that they were validly rejected.
It is to be noted that both PW6 and PW7 gave evidence for the petitioners and yet they differ on such a fundamental issue.”
In my respectful opinion, the said material contradiction in the evidence of the PW6 and PW7 whether Exhibits 23(1) – 95(7) were wrongly rejected dealt a terminal blow to the appellants allegation that the ballot papers in issue were wrongly rejected – see Awuse v, Odili (2005) FWLR (pt. 261) 248 at 288-289.
I agree with the lower Tribunal that on the strength of letter of dismissal of the 1st respondent from the employment of the Lagos State Government in Exhibit 4 supported by the evidence on oath of the PW2 one Adesegun Ogunlewe, the Head of Service of Lagos State, called by the appellant through whom Exhibit 4 was admitted in evidence the 1st respondent was not in the employment of the Lagos State Government at the time he contested the election in question. Moreover, there was no evidence that 1s respondent was on the pay-roll of the Lagos State Government at the time he contested the election. So did Exhibit 5, the 1st respondent’s letter of retirement from the service of the Lagos State Government tendered through the PW2 by the appellants, which established 1st respondent was not in the employment of the Lagos State Government at the time of the election. The lower Tribunal was accordingly right to hold that the 1st respondent was not in the employment of the Lagos State Government at the time he contested the election. The allegation that the 1st respondent presented a forged tax clearance certificate to the 3’d respondent was criminal in nature calling for proof beyond reasonable doubt and placed the heavy burden on the appellants to prove the allegation of forgery by putting in evidence the alleged forged certificate and demonstrating how it was forged which were not established by the appellants see Nnachi v. Ibom and Others (2004) 1 EPR 786 at 800 thus:
“Forgery means fraudulently making or altering anything especially a document; counterfeit; deceit; to make falsely for purpose of fraud. Is the petitioner who alleged forgery of the stated Certificate. He has the abiding onus to prove same beyond reasonable doubt as dictated by Section 138 (1) of the Evidence Act Cap, 112, Law of the Federation of Nigeria, 1990.”
See also ANPP v INEC (2010) 13 NWLR (pt. 1212) 549 at 585.
It is for these reasons that I dismissed the appeal and affirmed the judgment of the lower Tribunal on 19.12.2011. The return of the 1st respondent by the 3rd respondent as the elected candidate representing the Oluyole Federal constituency of Oyo State in the Federal House of Representatives is hereby affirmed.

ADZIRA GANA MSHELIA, JCA: I read before now the full reasons given by my learned brother IKYEGH JCA, in his lead judgment just delivered. I am in complete agreement with his reasoning and conclusion that the appeal be dismissed. My learned brother had adequately considered all the issues raised in this appeal. I have nothing useful to add but to adopt same as mine. I too dismiss the appeal and abide by all other consequential orders made in the lead judgment, cost inclusive.

MODUPE FASANMI, J.C.A: I have read before now the judgment just delivered by my learned brother J.S. Ikyegh J.C.A.
I entirely agree with the reasoning and conclusion reached. The appeal is devoid of merit. It is also dismissed by me. I abide by all the consequential orders made in the lead judgment.

Appearances

MR. O.O. AKEREDOLU, S.A.N.,
Prince A. Adeyemo,
Messrs, G. Aleyeni and
B. Alabi For Appellant

AND

Mr. B. Aturu,
Mrs. C. Anyanwu,
Miss Idowu-kola)
Mr. T. Dauda
Mr. K. Faokunla For Respondent